East West Street
Weidenfeld and Nicolson 464pp £20
Legal history can be the dullest of subjects. Stories of the development of court rules and practices necessarily involve explanations of complex intellectual juggling, plodding attention to precedent and to the mental calisthenics of lawyers who, on the whole, live unadventurous lives. In describing the birth of international criminal law, Philippe Sands ingeniously avoids tedium by telling how two great jurists went to work, while their families were being transported and gassed, interposed with the similar fate of his own grandparents at the hands of Hans Frank, Nazi Governor of Poland.
Hersch Lauterpacht developed the idea that state sovereignty could not be impregnable, if the state ran amok and murdered its own citizens. Rafael Lemkin invented the word and the concept of ‘genocide’, the worst crime of all: mass-murder carried out with the intention of destroying a racial or religious group. Sands often treats their contributions and the men themselves as competitive, although they were in alignment by the time of the Nuremberg trials. Thereafter, Lauterpacht’s demonstration that international justice had the power to punish crimes against humanity needed elaboration (for example, by establishing that the crime could be committed other than at the time of a declared war), while Lemkin’s true achievement also came at a time outside the focus of the book, when his Genocide Convention was adopted by the UN. Nonetheless, Sands gives a compelling account of how their ideas resounded in the minds of statesmen and lawyers as they strove to find a legal way of punishing the perpetrators of the Holocaust, men whose depraved actions had been authorised by their national law.
The story gathers its force – and its horror – from telling what happened to these men’s families and to the author’s family, all connected through early times in or near East West Street in the city of Lviv (formerly Lemberg) in southern Poland (and now in the Ukraine). Their joys, depicted through album photographs, gradually turn to ashes after the emergence of Hitler. The Führer’s one-time lawyer, Hans Frank, was given plenipotentiary authority in Poland and soon Treblinka and Auschwitz were going full blast, exterminating Jewish subjects. The poignant family theme in the book continues through interviews with Frank’s son, a child at the time, who now believes in his father’s inexcusable guilt.
East West Street is a book about the remembrance of atrocity: those who were children when it happened cling to the last memories of their parents, recalled running from the Gestapo or offering them false and frightened reassurance. Those who got away grieve privately ever after, sleeping with mementos of their lost loved ones under their pillows, refusing to speak even to their own children about the unbearable inhumanity they have witnessed and suffered. I do not think, however, that Lauterpacht and Lemkin were driven by their fears for their families; indeed Lemkin had convinced himself of the need for a law against genocide after his study of the 1915 Armenian massacres.
The evidence for some of the moving stories in this book has had to be dug out and put together, as if from the remains of a mass grave. That process, depending on conjecture and the inference from circumstances, can be fallible, but no such problem affected the judgement at Nuremberg. As the prosecutor Robert Jackson pointed out, there could be no reasonable doubt about Nazi guilt: it was there in the court documents (many of them gathered by Lemkin) as a result of ‘the Teutonic habit of writing everything down’. That habit has not been followed by other genocidaires and the current work of the International Criminal Court is bedevilled by the difficulties, without any police force or enforceable discovery procedure, of obtaining evidence against its suspects.
The UN Security Council will not permit the indictment of Assad, nor act against those states which welcome the Syrian leader. But even so, the Nuremberg legal legacy to which Lauterpacht and Lemkin contributed established that a state cannot immunise its leaders against international prosecution for the worst of crimes against its own citizens. We must applaud these lawyers, while acknowledging that Hans Frank, through his own confessions in diaries, provided them with the compelling evidence to which their theories could be applied.
The denizens of East West Street are long departed, but their ghosts hover through the pages of this fine book to remind us that genocide is different from other crimes: its perpetrators can neither be forgotten, nor forgiven.
Geoffrey Robertson QC is the founder and joint head of Doughty Street Chambers, London and the author of several books, including Crimes Against Humanity: The Fight for Global Justice